Why It's Tempting, But Troubling, To Use Copyright As A Stand In For Moral Rights

from the emotional-reactions dept

A few people have sent over an interesting lawsuit, filed on behalf of a married NY couple, Brian Edwards and Thomas Privitere, along with photographer Kristina Hill, against a (in my opinion, misnamed) advocacy group called "Public Advocate of the United States," (PAUS) which advocates against any effort to allow gay marriage. Edwards and Privitere had Hill photograph them for their engagement photos, and among the photos taken was this one:

Edwards and Privitere posted it to their blog, where it was apparently found by someone at PAUS, who apparently used the photo in a series of campaign mailers in election campaigns against candidates they wanted to attack as being in favor of gay marriage. The ad was used in at least two campaigns, as shown below:

Edwards, Privitere and Hill all found out about the use after there was an article in a NY newspaper about one of the campaigns in question, which showed the mailer. A friend of Edwards recognized him and passed along the news. Edwards told the others about it and posted about it on the couple's blog, where he noted:

“[The photo] represents my long term relationship with my best friend, my partner, and now husband – the love we share and obstacles we have overcome. It is a reminder of the happiness I felt the day he proposed to me and of the excitement I had throughout our engagement. It represents hope and it represents love. Or at least it did… Now I see it faded and brown with a big red, blood-emulating slash across our bodies. It cuts us in half just below our hearts. How do I feel? I’m in shock and I’m angry and I’m hurt and I’m
flabbergasted and I’m livid.”

The image was used without permission by Edwards, Privitere or Hill, and all three are now suing PAUS over the use of the image. Hill is arguing copyright infringement, while Privitere and Edwards are arguing "appropriation of likeness or personality." I will admit that I have a vague acquaintance with one of the lawyers representing the three (in that I'm very familiar with his work, and met him once at a conference). I should also admit that I find PAUS's general position on this issue despicable, and find their use of an image that was created to celebrate love not just cynical, but insulting and obnoxious in the extreme. Emotionally, I want very much to look at this as a case where copyright makes sense and is being used wisely.

But I have concerns about its use here. Is this copyright infringement? Undoubtedly, under the law, it almost certainly is. The image is covered by copyright, and Hill registered it as well, giving her even greater ability to bring this kind of lawsuit. The photo was clearly used without authorization. Is there a fair use claim? In a pinch, I could see an argument for one (you could argue it's transformative, non-commercial use, political speech, etc.) but I'm not convinced it's a particularly strong fair use claim.

So, I am extraordinarily sympathetic to the plaintiffs here. And, at a gut level, I really, really want to support their position. But I'm worried about the implications here. Copyright in the US is an economic right, not a moral one. Other countries may have "moral rights" or "droit moral" on photographs, but we don't in the US. And it is clear that the copyright complaint is really entirely about the moral rights issue as it relates to copyright. There is no economic impact at issue here, because there is no economic interest in this image. There does not appear to be any plan or intent to license the image or exploit it economically in any way.

And, so, I worry when we start using moral rights arguments to defend a copyright claim, no matter how strongly I support the moral argument being advanced by the plaintiff.

I am somewhat less troubled by the appropriation of likeness argument, and this is one (rare) area where it feels appropriately applied: to a situation in which individuals who do not support a particular viewpoint are thrust into a debate on it. One could argue that this actually gives them a platform to speak out about such bigotry and raise greater attention to the issue -- but it seems like a stretch to think that this is okay in these circumstances. You could also argue that no one (absolutely no one) would look at the image and think that Edwards or Privitere support the politicians running on an anti-gay marriage platform. You could also argue that once the photograph is out in the world, it means that the public can comment on the photo. All of those arguments do feel a bit weak, however.

On the whole, I completely understand why this lawsuit was filed and recognize how ridiculous and hurtful this particular use is for all three plaintiffs. But, cases that create emotional responses quite frequently lead to bad precedents that can later be used in other cases. And establishing the ability to use the economic right of copyright as a catch all moral right potentially stretches the law too far.

question

So if I take a picture and someone uses that picture without my permission for something that I am completly against (say, the KKK for a rally) but they aren't trying to directly make money via the image, I can't sue to stop them from using my picture? That doesn't seem right..

Re: question

Its not that simple and it depends on the circumstances, but yes there would be a wide variety of circumstances where someone can use an image you took to support something you hate and you cannot (successfully) sue to stop them. At least in my opinion, that is as it should be.

One of the reasons fair use exists is to limit the ability to use copyright as a form of censorship. A photograph in particular, especially one that depicts something controversial is in addition to any artistic depiction a capturing of a moment in history. That may be valuable to newspapers, commentators, and historians. Fair use partially exists to make sure all of those people are not undully hampered in doing their duty.

Re: Re: question

I would disagree. The law is independent of circumstance and in this case, the photograph was used without permission. Open and shut case.

Political speech is rightly highly protected, but they can't break the law while exercising that right. This clearly breaks the law.

Political campaigns have used songs against the artists wishes but those artists agreed to license their works for a flat use fee. They can't complain when it's used outside their interests and beliefs because legal license was granted.

I highly doubt any such 'use' license for this photograph exists and therefore the campaign has no legal standing to use the image.

Re: Re: Re: question

No, its not an open and shut case. Now, if this doesn't settle a court may ultimately find that this was infringing and illegal. But before they do so they must consider fair use. Here the question is fairly murky with good arguments either way, but its definitely not open and shut.

As for breaking the law while exercising free speech...The law, by definition, does not allow it. But society often lauds a certain amount of non-violent civil disobedience and non-violent law violations in the context of making powerful political statements. Gahndi and Martin Luther King Jr. both advocated a certain limited amount of non-violent law breaking and MLK participated in it and went to jail more than once.

Also, if you want to challenge a law's constitutionality in court you often must break it in order to create a live and current case. One of the Japanese curfew cases during WWII was created this way by a man of Japanese descent violating curfew with his lawyer aware and his secretary calling the police to ask that he be arrested.

To be clear, I am NOT comparing these people to MLK or other such civil rights heroes. I in fact openly state that I believe they morally did the wrong thing in using this picture, and I generally disagree with their stance.

But, it is not as simple as saying this is an open and shut case or saying that you can absolutely never break the law in exercising free speech.

Re: question

The author of this article is an ignoramus. If you look at Judge Chin's rejection of Google Books attempted theft (p32 of the judgement)

"Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) ("The owner of the copyright, if he pleases, may refrain from vending or licensing and content himself with simply exercising the right to exclude others from using his property."

Yes, THIS!

"But, cases that create emotional responses quite frequently lead to bad precedents that can later be used in other cases. And establishing the ability to use the economic right of copyright as a catch all moral right potentially stretches the law too far."

That's the important part. It's very easy to allow emotional reactions to dominate, and those emotional reactions are almost always, to some degree, wrong due to the coloration of emotion. The appropriate avenue for attack here is NOT copyright, though, like you, I'm less appalled by it or the likeness rights plea.

But again, the appropriate attack vector is to highlight the bigotry and pure idiocy of PAUS. I would simply request, in a public forum, "why did you feel it was okay to use this picture of two private people this way?"

I suspect, unfortunately, that the true answer lies somewhere in the realm of "because we don't consider them people". And FUCK PAUS for that. But in an age of relative enlightenment when it comes to gay rights, better to simply highlight the stupid and make them toxic than soil the morality of man by getting our stupid legal system involved in it....

Re: Yes, THIS!

I agree. Actually, after the novelty wears off (took 5 seconds for me) this is a sweet picture. And this is coming from a straight guy who is still slightly homophobic. Sorry, but their amber and blood tinting really doesn't reduce the cuteness.
I was already pro-gay marriage. This pic just makes me more so. No need for lawsuits.

It would be funny if some of PAUS leadership were photographed in a negative manner, as turn about is fair play...

There is no economic impact at issue here, because there is no economic interest in this image. There does not appear to be any plan or intent to license the image or exploit it economically in any way.

I think there is an economic interest. If this image was not unlawfully appropriated, the producers of the ad would have had to stage such a picture. They easily could have meant actors or individuals who would have demanded compensation. If the producers had gone to the copyright owner, they'd probably have been denied use or made to pay a hefty sum.

Re:

I can do better than that. The economic impact here could potentially be on the side of both the photographer as well as any other photographers willing to do wedding/engagement photos for homosexuals. PAUS has now proven that they're willing to appropriate people's photos of love into their hate campaigns. Homosexuals may, as a result, be less willing to have this kind of photographic work done, thus harming photographers economically through the use.

This, of course, is one massive stretch from the intention of the economic harm standard, which is to prevent loss of sale through the selling of the appropriated work by the infringing party, but at least it's a somewhat coherent argument....

Re: Re:

1. This transformative use is wrong. The original image was much better.

This lawsuit is the way they want the game played. This lawsuit hopefully will show the power of the DMCA. People all of the time have had their stuff removed from YouTube for transformative work. Have a video of nature with a bird singing in the background - It will get banned. Have a video of a 4 year old dancing with MTV playing in the background? It will get taken down also.

Steal an image of a couple and completely remove any romance...that's right - DMCA them. And then sue them.

Economic Impact

My take on the economic impact is that PAUS has now tarnished on image that was properly registered for copyright by the lawful owner (the photographer). That case should be fairly strong in that the photographer's exclusive rights have been infringed. The value of any future use of the photograph has been damaged by the unlawful appropriation of the image. The difficult part of this case is going to be sticking to the rights defined by law and avoiding the emotional aspect (although if it goes to a jury, jury selection of neutral or gay favorable jurists will be critical). Certainly someone made money from the appropriation of the image and production of the brochures. At least more than the photographer made from the use of the photos (other than the payment by the couple).

Did PAUS have a model release of the two persons?

You don't use photography of people without their permission. Especially if the people can be recognized. Especially when you are going to push that photo to the general public such as in an advertisement, mailing, magazine, billboard, etc. I don't care where they got it, or how transformative it is. Nobody ever got sued for having obtained a model release from the persons photographed.

If you're going to use imagery of people for political purposes, then you really really should have a model release.

There is lots of CC and/or reasonably priced imagery online that has model releases. Sometimes the model releases restrict particular uses. For example, that the image of the model cannot be used in any way related to pornography or adult oriented businesses. Maybe some people who appear in stock photos want to think about use for political purposes or hate groups, or whatever else they might not want to be depicted in.

Couldn't PAUS have produced their own imagery or reasonably purchased imagery for their mailings?

Can't an anti-gay group get two men on their own staff to consent to kiss on camera so their photo can be seen by the general public? If not, then maybe they should re-think using other images of other people without their consent.

Once again proof that copyright is for the average Joe

This blog likes to keep repeating the misguided notion that consumers and little people are hurt by copyright. Alas, they're only speaking about the finances of billionaires like those at Big Search who don't want to share any of their revenue with the people who do the work.

This is an ideal example of how the little guy needs copyright. It puts the creator in control and lets the creator decide how his or her work is used. Copyright is very much a law that supports the work of little people everywhere because it gives little people a serious legal tool to keep the big corporations and big politicians from stomping all over them.

The rest of this posting is just a bunch of mental and ethical gymnastics because this blog has become a real creator hater that it can't even support copyright when the issues are so clear and uncontroversial. It's sad.

Re: Re: Once again proof that copyright is for the average Joe

Re: Once again proof that copyright is for the average Joe

"The rest of this posting is just a bunch of mental and ethical gymnastics because this blog has become a real creator hater that it can't even support copyright when the issues are so clear and uncontroversial. It's sad."

I don't directly agree with you much Bob, but I will give you this one.

Attempting to wrap a clear copyright issue into some sort of moral thing is just crap. It's their picture, they have the rights, they didn't permit it. END. No moral play, no issue that they are gay, not gay, bisexual, tri-sexual, or neuters. It doesn't matter - it doesn't enter into the issue.

Put another way, they would likely be just as upset and just as likely to file suit if it was the Rainbow Coalition using it, or Out Magazine. The type of usage isn't as important as the idea that it's usage without permission, END.

The moral stuff is some method to try to bury the very basic issues under a gay vs homophobes rug. I think it's more intellectual dishonesty, shows me only that Mike is getting more and more desperate to try to find cases that support his views, and to discredit or downplay those that do not.

Re: Re: Once again proof that copyright is for the average Joe

So you didn't actually read the article itself, where Mike several times raises his concern at his own emotional/moral response, and the potential emotional/moral responses of others? You didn't read how he agreed with his usual position that objectively this is at least possibly transformative/fair use?

If Mike had tried any more to avoid leaving out troll-bait, he'd have fallen over. In fact, if Mike came out and spoke FOR copyright and against Fair Use, especially for a 'big company' you trolls would still find something to bash him over. Grow up.

At least here we have a clear case of Big Shills Big Suck-up-to Big Hate. I'll take Mike's side with the small, decent people here.

Surely the derivative photo's are fair game for the owners to take them and make further changes. The background to the second photo is rather fetching and makes it look like a movie poster. It's the kind of photo you could easily see becoming a meme.

They could easily fix that banner to read "PAUS endorse our marriage?" and distribute that?

I don't know, I like to stick to my principles and try to find creative solutions to problems. Just the publicity alone is a negative (positive?) for PAUS I imagine, I mean who are they even? First time I've heard of them and it seems like their target market is going to be the kind of people who see this photo and see red anyway...

What I mean is reasonable people will see it for what it is anyway, unreasonable people are not going to be influenced beyond their prejudice already.

Re: Another angle

How did they 'give ownership' to the photographer? By copyright law, the photographer already has 'ownership' of the photo by having taken ('fixed') it. For the couple, it really comes down to a moral issue.

Re:

As copyright is the right to control copying, and hence use, regardless of whether money changes hands. For this photo it is not clear who actually holds the copyright, the photographer of the subjects, but they did not agree on this use; it is therefore copyright infringement.
Unless agreed between the photographer and subjects, the copyright of a photograph belong to the photographer. The could agree to such use without consulting the subjects.
Claiming fair use for this use, or news use,would allow the news organizations to make use of all CC licensed photographs while totally ignoring any license terms.

Photos of private citizens vs. public figures

Mike,

Using photos of public figures is one thing where fair use could easily be argued (copyright of the photographer not withstanding), but using photos of private citizens who have some expectation of privacy is, in some places, clearly illegal without their explicit signed release. I hope that this couple prevails in court and takes PAUS to the cleaners!

Likeness / First Amendment

I'm surprised you're less troubled by the misappropriation of likeness argument. This seems to me to be a clear misuse of the claim.

Misappropriation laws were not created to prevent people from being thrust into political debates. They were created to prevent false product endorsements. It's not a moral right, but an economic right similar to trademark. Here, there's no commercial product, and if there was, the couple clearly doesn't endorse it.

In addition, think of this in First Amendment terms. PAUS is not only attacking politicians -- it's also attacking Edwards and Privitere themselves, and saying that they're doing is wrong. Telling PAUS that it can't use a photo of Edwards and Privitere to criticize Edwards and Privitere is like telling Romney he can't use Obama's photo to attack Obama.

Of course, Edwards and Privitere have a greater privacy interest than Obama. But it's not against the law to talk about private people in public. Were it otherwise, kids would be sued for bad-mouthing each other on Facebook. And while this photo may have some private meaning for the couple, they can't very well claim a privacy interest in it if they post it on a public blog.

To be clear, I find PAUS's actions repugnant, but copyright issues aside, if Fred Phelps has the right to picket the funeral of a soldier, then PAUS clearly has a right to say, "We disapprove of Brian Edwards's and Thomas Privitere's act of love."

Fair Use / Satire

The fair use claim probably hinges on the distinction between satire and parody. That is, it's usually okay to use a portion (or in some cases, all) of a creation work to criticize the original work. But it's not okay to use the work to criticize something else.

Here, Kristina Hill would argue that her photograph is not being copied to critique the artistic merits of her photo, but to go after something else entirely (politicians). On the other hand, PAUS could quite plausibly say they're also criticizing gay marriage, gay people, and Hill's complicity in the entire enterprise.

To me, that just highlights how ridiculous the satire / parody distinction is in fair use. Fair use is really about one thing -- does this use somehow serve as an economic substitute for the original? In this case, it clearly doesn't. While PAUS's ads are repugnant, this isn't why copyright was created.

In this case it's less copyright, more lack of model release. Fun fact: all commercial images need to have a release signed by the model letting them plaster their image everywhere. The plaintiffs didn't; so we're looking at a redux of Virgin Mobiles infamous "From Virgin to Virgin" campaign snafu.

Moral Rights Claim?

Sorry, unless the ohitograph had bee used by or was taken of one of the candidate PAUS is opposing, I can see no basis for a fair use argument. Use in criticism or comment presumes the work being copied is part if the dialog. In this case, this is a photograph unrelated to the discussion or parties except for the fact that it pictures a loving act which some find offensive on moral grounds. Preventing its use is not censorship, but protecting the photographer's financial interest in and control over the photograph.

The photographer actually has an economic interest in the photo which is clearly seen by the copyright registration of it. Should the couple want additional copies of it, I imagine that the photographer would want them to come back and pay for them. By plastering it out into the world for everyone to copy and share freely, it takes away the ability to do that.

Registration of this picture

I'm confused about something. Was this image registered with the copyright office before the infringement took place or after? I would be surprised if a photographer of a wedding reception would register all of their pictures for every client the shoot images of.

If she registered after the fact isn't it too late to bring on a federal copyright suit? Doesn't the registration need to be done before the infringement?

Just curious I am however on the side of those guys and pro gay marriage, just wondering about the semantics of the law here.